Appropriation Bill (No. 4) 2009 2010

Bills Digest no. 77 2009–10

Appropriation Bill (No. 4) 2009 2010

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Annual appropriations

Section 83 of the AustralianConstitution
provides that no monies may be withdrawn from the Treasury except
under appropriation made by law . Acts authorising expenditure are
either:

special appropriations, or

one of (usually) six annual appropriation Acts.

Special appropriations which account for more than 80 per cent
of expenditure are expenditure authorised by Acts for particular
purposes. An example of a special appropriation is the Tax Benefits
A and B paid under A New Tax System (Family Assistance)
(Administration) Act 1999. The remainder of expenditure is
funded by annual appropriations. Appropriation Bill (No. 4) 2009
2010 (the Bill) is an annual appropriation Bill.

Ordinary and other
annual services

Section 54 of the AustralianConstitution
requires that there be a separate law appropriating funds for the
ordinary annual services of the government. There are therefore
separate annual appropriation Bills for ordinary annual services
and for other annual services. The distinction between ordinary and
other annual services was set out in a Compact between the Senate
and the Government in 1965.[1]

administered expenses in the form of some payments to the
states, territories and local governments, which are paid under
section 96 of the Constitution

new administered expenses for new outcomes, and

non-operating costs (sometimes called capital costs).

With respect to payments to the states, territories and local
governments, there was a major change to payments beginning 1
January 2009 resulting from the agreement by the Council of
Australian Governments to new arrangements for federal-state
financial relations. Under the new arrangements, Treasury makes
specific purposes payments to the states monthly. These payments
are for National Specific Purpose Payments, National Partnership
payments and general revenue assistance. These payments are made
under the Federal Financial Relations Act 2009 and account
for the great bulk of payments to the states and territories.
Previously, these payments were made under Appropriation Act (No.
2). There are two exceptions to these arrangements: payments made
directly to local governments, and some payments made through the
states for non-government schools that are not paid under the
Schools Assistance Act 2008 or the COAG Reform Fund. The new
arrangements claimed to improve transparency. A consequence of
transferring the bulk of payments to the states from Appropriation
Act (No. 2) to the Federal Financial Relations Act 2009
was to convert annual appropriations into special appropriations.
Before this change, the annual Appropriation Acts used to account
for about 20 per cent of total spending. This figure now probably
overstates the proportion.

By their nature, new administered expenses for new outcomes
cannot be classified as ordinary annual services and so are
appropriated as an other service.

Non-operating costs appropriations fall into five categories.
The first three are used to produce departmental outputs. The five
categories are:

equity injections into agencies to fund, for example, major
investment in new assets to produce departmental outputs

loans that are provided when an investment is expected to yield
a return such as productivity gains

previous years outputs appropriations. They replenish funds
used to provide departmental outputs in a previous year. This can
occur, for example, when the government decides to introduce a new
program but the decision comes too late for the program to be
funded through the additional estimates Appropriation Bills. In
such cases, the program is funded initially from existing
appropriations

administered assets and liabilities appropriations. They are
funding, for example, for the purchase of new administered assets
and the reduction/extinction of administered liabilities, and

payments to bodies established under the Commonwealth
Authorities and Companies Act 1997 (CAC Act bodies) for their
non-operating costs.

Additional
estimates

Appropriation Bill (No. 1) is introduced with the budget and
appropriates funds for the ordinary annual services of the
Government . Appropriation Bill (No. 2) which is also introduced
with the budget appropriates funds for other annual services. A
third Appropriation Bill Appropriation (Parliamentary Departments)
Bill No. 1 funds the parliamentary departments.

Funding requirements usually change after the budget is brought
down. The government may agree to additional funding if the amounts
in the three budget Appropriation Acts are inadequate and so has to
seek parliamentary approval for additional expenditure. The process
whereby additional funds are provided is called additional
estimates and usually begins around
November of the budget year. The approved additional funding is
incorporated into Appropriation Bills No. 3 and No. 4 and
Appropriation (Parliamentary Departments) Bill No. 2. These Bills
are the counterparts of Appropriation Bills No. 1 and No. 2 and
Appropriation (Parliamentary Departments) Bill No. 1
respectively.

Terms used in the
Bill

Departmental and
administered expenses

Departmental expenses (outputs) are the costs incurred in
running agencies, for example, salaries, supplies of goods and
services, and other day-to-day operating expenses. Administered
expenses are the costs of providing the programs that agencies
administer. Most administered expenses are funded through special
appropriations but some are funded through the Appropriation Bills.
The Bass Strait Passenger Vehicle Equalisation Scheme is an example
of an administered expense funded as an ordinary annual
service.

Reduction
processes

Budget allocations can be reduced. It is sometimes the case that
an appropriation for a departmental expense exceeds what is needed.
However, departmental items do not automatically lapse if they are
not spent. In these circumstances, a reduction process to
extinguish the unspent amount is available. Under this process, on
request in writing from a minister, the Finance Minister may issue
a determination to reduce the agency s departmental expenses
appropriation. In short, the excess of the amount allocated over
the amount expended can be extinguished.

Appropriations for administered expenses are also subject to an
annual process to extinguish amounts that are not required. The
amount identified as expenditure on administered expenses in
agencies financial statements as published in their annual reports
is the basis for this process. In short, the amount of the
reduction is the difference between the amount appropriated and the
amount spent as shown in the agency s financial statements.

A process exists for reducing CAC Act body payments (see below).
This process is almost identical to that for departmental
items.

Departmental expenses (outputs) and administered expenses
contribute to outcomes. Outcomes are the results or consequences
for the community that the government wishes to achieve. An example
of an outcome, in the Attorney-General s portfolio, is:

Advance to the
Finance Minister

The Advance to the Finance Minister (AFM) provides flexibility
to the budget process by authorising the Finance Minister to expend
money when the Finance Minister is satisfied that there is an
urgent need for expenditure during the financial year but for which
there is not a sufficient appropriation. The Finance Minister can
expend money from the AFM only if the proposed expenditure meets
certain criteria, namely, there is an urgent need for the
expenditure that is not provided for, or is insufficiently provided
for, because of an omission or understatement or because of
unforeseen circumstances.

Portfolio Budget Statements

When the budget is brought down, the government
releases Portfolio Budget Statements.[3] They contain, amongst other things,
information on all sources of funding for an agency including
annual Appropriation Bills and how the agency proposes to spend
those funds. The Portfolio Budget Statements are relevant documents
for the purposes of paragraph 15AB(2)(e) of the Acts
Interpretation Act 1901. This means that the Portfolio Budget
Statements can be used to help interpret an Act.

Under the Financial Management and Accountability Act
1997 (FMA Act), no money can be paid from the Consolidated
Revenue Fund without a valid drawing right. Drawing rights control
payments from the Consolidated Revenue Fund and the use of
appropriations. They allow conditions and limits to be set by the
Finance Minister (or the Finance Minister s delegate) in relation
to those activities.[5] The FMA Act also provides that an official or minister
must not make a payment of money from the Consolidated Revenue
Fund, or debit an appropriation, unless they are authorised by a
valid drawing right. General drawing rights limits cap how much
money can be spent from a particular appropriation in a particular
year; they do not appropriate money.

Depreciation is the wear and tear on non-financial assets
(sometimes called fixed assets) such as computers and plant and
equipment. Amortisation refers to the writing-off of so-called
intangible assets such as patents and trademarks. In their
financial statements, agencies and the parliamentary departments
recognise depreciation as an expense (debit) and credit an asset
depreciation account annually. The effect is to create a reserve
from which the asset can be replaced.

Under accrual budgeting, agencies and the parliamentary
departments are funded for their depreciation expense annually.
Agencies and the parliamentary departments are also funded for
amortisation expenses and the cost of restoring assets. The latter
is also called make good money because funds are provided to make
good an asset. Agencies and the parliamentary departments hold the
depreciation funds until they replace the asset. Some have
questioned why agencies and the parliamentary departments are given
funds before they need them.[6] The Rudd Government has adopted a two-pronged approach
to this matter. The first is to cease funding depreciation annually
and, instead, fund agencies and the parliamentary departments only
when they replace assets. Government policy with respect to the
cessation of depreciation funding is set out in Operation
Sunlight:

The Government will cease funding for depreciation from 1 July
2009 for collecting institutions in relation to their heritage and
cultural assets and from 2010 11 for all other agencies in the
general government sector.[7]

The second approach is to recover unspent depreciation funds
from agencies and the parliamentary departments. The Bill contains
a mechanism for recovering unspent funds from the parliamentary
departments. Appropriation Bill (No. 3) 2009 2010 contains a
mechanism for recovering unspent funds from agencies.

Department of
Infrastructure, Transport, Regional Development and Local
Government

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-

-

-

-

The Government will provide $220 million to local councils
under the Regional and Local Community Infrastructure Program and
provide $25 million to establish a Local Government
Reform Fund.

Funding provided under the Regional and Local Community
Infrastructure Program will support investment in community
infrastructure, such as libraries, community centres, sports
grounds and environmental infrastructure, and will be delivered in
two streams:

$100 million shared between all of the nation's councils
and shires; and

$120 million for larger strategic projects, provided on a
competitive basis.

The Local Government Reform Fund will help councils better
manage their infrastructure and plan for future needs. It will
fast-track local government infrastructure financial and asset
management and planning under nationally consistent guidelines. It
will also encourage cooperation between councils to improve their
capacity to serve local communities.

This funding is in addition to the $300 million provided in
2008 09 for the Regional and Local Community Infrastructure Program
announced at the Australian Council of Local Government on 18
November 2008 and the $500 million over two years announced on
3 February 2009 in the Updated Economic and Fiscal
Outlook.[9]

Provision for this funding has already been included in the
forward estimates.

Further information can be found in the joint press release of
25 June 2009 by the Prime Minister and the Minister for
Infrastructure, Transport, Regional Development and Local
Government.

Note: The Portfolio Additional Estimates
Statements at page 18 show $24 million over two years for the
Local Government Reform Fund.

The Government will reduce funding for government and
non-government schools under the National Solar Schools Program.
The program provides grants of up to $50,000 to Australian schools
to install solar panels and for energy and water efficiency
improvements. Funding to install these types of improvements is
also being provided under the Building the Education Revolution
program.

This measure will provide savings of $53.1 million over two
years from 2010 11, comprising a saving of $15.9 million in
payments by the Department of the Environment, Water, Heritage and
the Arts to non-government schools and a saving of
$37.2 million in payments by the Australian Treasury to the
States and Territories in relation to government schools.

The Government will provide $229.6 million over five years
(including $21.0 million in 2008 09) in response to the
H1N1 influenza virus pandemic. This funding supports the following
activities designed to manage this pandemic and to enhance
preparedness for any future pandemics:

storage, compounding and distribution of antivirals and
personal protective equipment;

immediate communications, border protection, surveillance and
health care worker support and training in 2008 09. This included
expenditure by the Department of Health and Ageing of
$15.3 million, by the Department of Agriculture, Fisheries and
Forestry of $4.2 million and by the Australian Customs and
Border Protection Service of $1.5 million.

Funding for these programs will consist of up to
$72.6 million of additional funding, with the remaining
$152.8 million of the cost of this measure being met from
within the existing resourcing of the Department of Health and
Ageing and the Australian Customs and Border Protection Service.
The Government will also provide an equity injection of
$4.2 million in 2009 10 to the Department of Agriculture,
Fisheries and Forestry as reimbursement for costs incurred in 2008
09.

The Bill appropriates about $0.31 billion for other annual
services of government compared with about $10.63 billion in
Appropriation Act (No. 2) 2009 2010.

As discussed below, the Bill also empowers the Finance Minister
to require the parliamentary departments to return unspent funds
previously allocated for depreciation, amortisation and the
restoration of assets. There are no estimates of the magnitude of
the amounts involved in the Explanatory Memorandum.

The Bill s provisions are generally similar or identical to
those in past Appropriation Acts appropriating funds for other
annual services. The following therefore focuses on new or changed
provisions.

The Bill introduces provisions whereby the general drawing
rights limit is increased by a goods and services tax (GST)
qualifying amount. Clause 3 defines a GST
qualifying amount as either an input tax credit or as a decreasing
adjustment, both being within the meaning of the GST Act. The GST
qualifying amount is discussed below under clause
17.

Clause 7 deals with payments to the states,
territories and local governments. Subclause 7(1)
provides that where an amount is identified as a payment to the
states, territories and local governments and the amount is for an
agency outcome, the amount can be applied for the purpose of
achieving that outcome. Subclause 7(2) provides
that if the Portfolio Statements indicate that certain activities
were intended to be for a particular outcome, then expenditure on
those activities is taken to be as contributing to the outcome.

Clause 8 deals with administered items .
Subclause 8(1) provides that the amount identified
for an administered item in an outcome can be used to contribute to
that outcome. The wording of subclause 8(2) is
identical to that in subclause 7(2).

As noted above, administered assets and liabilities
appropriations are a non-operating cost. Clause 9
deals with administered assets and liabilities items.
Subclause 9(1) provides that the amount,
identified for an agency s administered assets and liabilities in
the Schedules in various Appropriation Acts, may be applied to
achieving any of the agency s outcomes. The wording of
subclause 9(2) is identical to that in
subclauses 7(2) and 8(2).

As noted above, other departmental non-operating appropriations
comprise equity injections, loans and previous years outputs.
Clause 10 authorises funding for departmental
non-operating costs by providing that the amount specified in an
other departmental item for an Agency may be applied for the
departmental expenditure of the Agency.

Clause 11 deals with CAC Act body payments
items . Subclause 11(1) provides that an amount
appropriated for a CAC Act body payment item may only be applied
for payment to the CAC Act body named in the appropriation.
Subclause 11(2) provides that if an Act provides
that a CAC Act body must be paid amounts that are appropriated by
the Parliament for the purposes of the body, and Schedule
2 contains a CAC Act body payment item for that body, then
the body must be paid the full amount specified in the item.
Schedule 2 shows the names of the CAC Act bodies
and the amounts to be paid to each.

Part 3 Adjusting
appropriation items

Clause 12 deals with adjustments to payments to
the states, territories and local government, and to administered
items. Subclause 12(1) provides that the amount by
which payments to the states, territories and local government and
for administered items can be reduced is the difference between
what has been appropriated and what has been spent, the latter
being the amount shown in agencies financial statements. However,
paragraph12(2)(a) gives the
Finance Minister power to determine that subclause
12(1) does not apply or that subclause
12(1) applies as if the amount in the annual report were
the amount that the Finance Minister determines
(paragraph12(2)(b)).

Subclause 13(1) enables the minister
responsible for an agency, or the Chief Executive of the agency
where the Finance Minister is responsible for the agency to seek a
reduction in administered assets and liabilities and other
departmental items, while subclause 13(2) empowers
the Finance Minister to make a determination that accords with the
request. However, the determination cannot reduce the appropriation
below zero (subclause 13(3)). Requests are not
legislative instruments (subclause 13(5)).
However, while the Finance Minister s determinations are
legislative instruments and are disallowable, the determinations
are not subject to the sunsetting provisions of the Legislative
Instruments Act 2003 (subclause 13(6)).

Clause 14 deals with reductions to CAC Act
bodies payment items. The wording in clause 14 is
almost the same as in clause 13. However, whereas
a request can come from the Chief Executive of an agency for which
the Finance Minister is responsible in the case of clause
13, a similar request must come from the Secretary of the
Department in the case of CAC Act bodies (paragraph
14(1)(b)). Subclause 14(5) confirms that
a reduction can be made for a CAC Act body even though it has been
allocated funds under subsection 11(2).

As noted above, the Advance to the Finance Minister (AFM)
provides flexibility to the budget process by authorising the
Finance Minister to expend money, by determination, in certain
circumstances. Clause 15 deals with the AFM but
differs from comparable clauses in previous Appropriation Acts. For
example, clause 15 of AppropriationAct (No. 2) 2009
2010:

contained the criteria the Finance Minister had to apply before
making payments from the AFM (subsection 15(1))

changed an amount in Schedule 2 of AppropriationAct (No. 1) 2009 2010 by the amount that the Finance
Minister had paid from the AFM (subsection 15(2))

limited expenditure from the AFM to the amount specified ($380
million) (subsection 15(3)), and

provided that where the Finance Minister had made a
determination to expend money from the AFM, the determination was a
legislative instrument (subsection 15(4)).

Subclause 15(1) provides that if the Finance
Minister has made a determination under subsection 15(2) of
AppropriationAct (No. 2) 2009 2010 before the
Bill commences thereby changing an amount authorised under
AppropriationAct (No. 2) 2009 2010 then the
determined amount is to be disregarded for the purposes of section
15(3) of the AppropriationAct (No. 2) 2009 2010
when the Bill commences. In other words, the effect of
subclause 15(1) is to ensure that the amount of
the AFM remains at $380 million and is not reduced by the amount of
a determination. As the Note to subclause 15(1)
states:

This means that, after the commencement of this Act, the Finance
Minister has access to $380 million under section 15 of the
AppropriationAct (No. 2) 2009 2010, regardless
of amounts that have already been determined under that
section.

Subclause 15(2) is designed to ensure that the
same item of expenditure is not authorised twice: once under the
AFM and once under the Bill. Subclause 15(2)
provides that if the Bill appropriates an amount for particular
expenditure (paragraph 15(2)(a)) and if, before
the Bill commences, the Finance Minister has determined an amount
the advanced amount under section 15 of the Appropriation
Act (No. 2) 2009 2010 for the expenditure, the amount the
Bill appropriates is taken to be reduced (but not below nil) by the
advanced amount. The Explanatory Memorandum contains the following
example:

For example if the Bill provides $20 million for a program and
an advanced amount of $5 million is determined by the Finance
Minister under [Appropriation Act (No. 2) 2009 2010]
for a particular payment under that program, then the amount
appropriated by the Bill, once enacted, will be reduced by $5
million (i.e. appropriating only $15 million for the
program).[10]

Part 4 General
drawing rights limits

Section 16 of Appropriation Act (No. 2) 2009 2010
limited the amounts that could be paid annually that is, general
drawing rights limits from the three funds established under the
Nation-building Funds Act 2008, namely, the Building
Australia Fund, the Education Investment Fund, and the Health and
Hospitals Fund. Section 16 also limited the amounts that could be
paid for general purpose financial assistance to the states,
territories and local government and national partnership payments
to the states and territories under the Federal Financial
Relations Act 2009. Clause 16 General drawing rights
limits changes the limits on the Education Investment Fund
and the Health and Hospitals Fund.

Subclause 16(1) reduces the limit on the
Education Investment Fund by $78 400 000 from to $1 390 094 000 to
$1 311 694 000 while subclause 16(2) increases the
limit on the Health and Hospitals Fund by $1 000 000 to $466 700
000 from $ 465 700 000. The Explanatory Memorandum provides the
following reasons for the changes:

The changes to the 2009 10 EIF and HHF general drawing right
limits reflect minor adjustments in the timing of payments from the
Funds. The EIF general drawing right limit also includes funding
for the Giant Magellan Telescope, which was announced by the
Minister for Innovation, Industry, Science and Research on
20 July 2009.[11]

The effect of clause 17 Adjustments for GST is
to increase a general drawing rights limit by the amount of any GST
qualifying amount. By way of explanation, the GST is a Commonwealth
tax. It therefore does not make sense for a Commonwealth agency to
pay GST. Division 177 of the A New Tax System (Goods and
Services Tax) Act 1999 (GST Act) provides that agencies are
not liable to pay GST. However, the GST Act also provides that
agencies are notionally liable to pay GST, notionally entitled to
input tax credits, and notionally have adjustments. Reasons for
these notional requirements include that the true cost of an agency
s purchases of goods and services would otherwise be understated.
To calculate the correct amount of GST notionally payable, a
Commonwealth agency, similar to a business, calculates the amount
of GST notionally payable by deducting the GST on purchases the
input tax credit from the GST on its sales. Adjustments can be made
to the net amount. Increasing adjustments increase the net amount,
and decreasing adjustments decrease the net amount. As to the
reason for adding a GST qualifying amount to a general drawing
rights limit, the Explanatory Memorandum states:

Some payments from the Building Australia Fund, EIF, HHF and the
COAG Reform Fund may include a GST qualifying amount and the
relevant general drawing rights limit is adjusted
accordingly.[12]

The effect of clause 17 is to ensure that all
GST qualifying amounts are added to general drawing rights limits,
including GST qualifying amounts that have arisen in the past,
thereby increasing the general drawing rights limits:

The clause applies to the current year and to 2008 09. This
clarifies that the amounts specified for the general drawing rights
limits, in both the current year and 2008 09, are exclusive of any
GST qualifying amounts that may arise (or has arisen) in respect of
acquisitions made in reliance on that limit.[13]

Clause 17 seems to correct an oversight since
general drawing rights limits were introduced in 2008 09.

Clause 18 Reducing departmental and administered items
for Parliamentary Departments in previous Acts is the
mechanism for recovering from parliamentary departments cash they
have received for depreciation, amortisation, and the restoration
of assets but which they have not yet used. Clause
18(6) defines depreciation and make good amount as the
total of the amounts of departmental items and administered items
from all previous Acts that the Finance Minister has identified as
having been provided for the following purposes, but which have not
yet been applied:

meeting depreciation costs;

meeting amortisation costs;

meeting the costs of returning an asset to a previous state or
condition.

The mechanism for clawing back unused funds is to reduce
departmental and administered funds allocated under previous Acts.
Subclause 18(1) provides that the Finance Minister
may determine, in writing, that a departmental item or an
administered item for an agency in a previous Act is to be reduced
by the amount specified in the determination. Subclause
18(3) provides that a departmental or administered item is
deemed to be reduced by the amount in the written determination.

Subclause 18(2) limits the effects of any
determination made under subclause 18(1).
Subclause 18(2) provides that a determination will
have no effect where the item is reduced below nil
(paragraph 18(2)(a)) or, where the amount in
the determination, when added to other amounts specified in
relation to the agency under subclause 18(1),
exceeds the depreciation and make good amount for the parliamentary
department (paragraph 18(2)(b)). The Explanatory
Memorandum explains that paragraph 18(2)(b)
is:

intended to confine the amount of the reduction only to amounts
identified as being for depreciation and make good amounts that
have not yet been applied.[14]

Subclause 18(4) provides that a determination
under subclause 14(1) is a legislative instrument,
that section 42 of the Legislative Instruments Act 2003
(relating to disallowance) applies to the determination, but that
Part 6 (relating to sunsetting provisions) of the Legislative
Instruments Act 2003 does not apply to the determination. In
short, this means that determinations are disallowable by
Parliament, but once made, will not expire.

Subclause 18(5) provides that a determination
must not be rescinded, revoked, amended or varied despite
subsection 33(3) of the Acts Interpretation Act
1901.[15]

Subclause 18(6) provides definitions of terms
in the context of the operation of clause 18.
Definitions include those for depreciation and make good amount and
previous Act . Subclause 18(6) also lists the Acts
to which the determinations apply.

Part 5
Miscellaneous

Section 96 of the Australian Constitution allows
Parliament to provide financial assistance to the states on such
terms and conditions as the Parliament thinks fit.
Clause 20Conditions etc. applying to
State, ACT, NT and local government items seeks to ensure
that payments made by the states, territories and local governments
from financial assistance provided by the Commonwealth must accord
with the conditions established by the Minister listed in
Schedule 1 in relation to the relevant outcome.

Clause 21 Appropriations of the Consolidated Revenue
Fund provides that the Consolidated Revenue Fund is
appropriated as necessary for the purposes of the proposed Act
including the operation of the proposed Act as affected by the
Financial Management and Accountability Act 1997.

Schedule 1 confers on the ministers named,
power to determine conditions under which any payments to or for
the states, territories and local governments may be made, and the
amounts and timing of those payments.

Appropriations are set out in Schedule 2.

Concluding comments

Among other things, the Bill empowers the Finance Minister to
reduce past appropriations for depreciation, amortisation and the
restoration of assets that the parliamentary departments have not
yet spent. When implemented, this will return funds to the
Consolidated Revenue Fund. There are no estimates of the magnitude
of the expected return of funds.

Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 02 6277
2464.

[15].
Subsection 33(3) of the Acts Interpretation Act 1901
provides that where an Act confers a power to make, grant or issue
an instrument, it is taken to include a power to repeal, rescind or
otherwise vary the instrument.

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